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ARTICLE 301 REMAINS MAJOR THREAT TO FREE SPEECH
Today's Zaman
Nov 18 2008
Turkey
In spite of an amendment made last May to a penal code article deemed
by the European Union, rights groups and intellectuals to be limiting
freedom of speech, a statement made by the justice minister on Monday
has shown that the modification has not led to any improvement,
law experts say.
The disputed provision, namely Article 301 of the Turkish Penal Code
(TCK), was changed in Parliament in May. The article, which has been
used to prosecute a number of writers, including Nobel laureate Orhan
Pamuk, for insulting "Turkishness," was amended to require the justice
minister's permission before opening a case. However, statements
made by Justice Minister Mehmet Ali Å~^ahin to the Sabah daily show
that the approval requirement has not had a huge impact. Å~^ahin said
the Justice Ministry had approved court cases for 47 out of the 381
applications that have been filed on 301-related charges since the
law was amended.
"If ministerial approval was not needed, all 381 applications would
be in court right now," he said. Å~^ahin added that he decides the
fate of a 301 probe request after consulting with the experienced
judges of the ministry's criminal affairs department, who conduct
detailed studies into each case.
Å~^ahin also defended his position on granting permission to prosecute
writer Temel Demirer because of his statements on the Armenian
allegations of genocide against Turkey. "This man is saying Turkey
is a murderer state. I am not going to let anyone call my state
a murderer. These [his] expressions are not exercising freedom of
speech: these are humiliating the state, which is exactly what 301
criminalizes," Å~^ahin said.
"There have been 47 permissions. This by itself shows that the Turkish
judiciary is anti-democratic. It shows that people's right to freedom
of expression is not under state protection," commented Husnu Ondul,
a lawyer and former head of the Human Rights Association (Ä°HD).
Ondul said the figures also show that the amendment has not really made
any difference. "These figures are actually not very different from
before the change. This shows that the change hasn't made a difference,
that our rights are not under protection and, most importantly and
gravely, that we are in a very bad situation given Å~^ahin's own
statement that he would not let the state be criticized," he added.
Mithat Sancar, a professor of law, said it did not matter how many
files actually went to court. "What matters is the criteria used
in assessing all of them. Is the permission to try a 301 case being
given according to some objective criteria? Or is it being given in
a more arbitrary fashion?"
"In democracies, citizens have the right to criticize their state. This
is the difference between totalitarian regimes and democracies. It
is in totalitarian regimes that you get in trouble for criticizing
the state," Ondul noted.
Another criticism of Å~^ahin's remarks was that he had not only given
permission, but also tried the case and made the judgment himself
with the statement "I won't let anyone call my state a murderer."
Independent news network Bianet's Erol Onderoglu commented, "Å~^ahin's
statement is openly a violation of the Turkish Penal Code Article 277,
which criminalizes 'influencing those performing a judicial duty,'
and Article 288, which criminalizes 'an attempt at affecting the fair
judicial process'."
He pointed out, "Minister Å~^ahin is not a court, and he is committing
a crime," and called on daring prosecutors to start legal action
against Å~^ahin.
Sancar said Å~^ahin's comment on the Demirer case raised serious
concern. "How will the judiciary not be affected by his words? He has
violated the first principle he should have adhered to: the principle
that one is innocent until proven guilty. I think these words show how
sincere the justice minister is about protecting freedom of speech. We
should really revisit what the justice minister understands about
democracy and freedom."
Amending 301
The amendment to Article 301 was welcomed by the European Commission
in May, whose members said they were expecting further changes to
ensure that such prosecutions come to an end.
The change made to Article 301 of the penal code was approved with 250
votes for and 65 against amid fierce criticism from the nationalist
opposition. The ruling Justice and Development Party (AK Party),
which dominates the 550-seat Parliament with 340 lawmakers, was the
only party that voted in favor of the amendment, while opposition
parties voted against it.
In addition to requiring the justice minister's permission to open
a case, the amendment changed the wording of the article making it
a crime to insult the Turkish nation, rather than "Turkishness." It
also reduced the maximum sentence from three years to two.
Although no one has ever been sent to jail on a 301-related charge, the
publicity of such cases has done a great deal of damage to individuals
who were suspects in these trials. Some, such as Armenian-Turkish
editor Hrant Dink, have paid dearly. Dink, who was tried for insulting
the Turkish identity in 2006, was shot dead by a militant nationalist
in January of last year.
--Boundary_(ID_Gk8qyIw/rswhU/G0yOiQLA)--
Today's Zaman
Nov 18 2008
Turkey
In spite of an amendment made last May to a penal code article deemed
by the European Union, rights groups and intellectuals to be limiting
freedom of speech, a statement made by the justice minister on Monday
has shown that the modification has not led to any improvement,
law experts say.
The disputed provision, namely Article 301 of the Turkish Penal Code
(TCK), was changed in Parliament in May. The article, which has been
used to prosecute a number of writers, including Nobel laureate Orhan
Pamuk, for insulting "Turkishness," was amended to require the justice
minister's permission before opening a case. However, statements
made by Justice Minister Mehmet Ali Å~^ahin to the Sabah daily show
that the approval requirement has not had a huge impact. Å~^ahin said
the Justice Ministry had approved court cases for 47 out of the 381
applications that have been filed on 301-related charges since the
law was amended.
"If ministerial approval was not needed, all 381 applications would
be in court right now," he said. Å~^ahin added that he decides the
fate of a 301 probe request after consulting with the experienced
judges of the ministry's criminal affairs department, who conduct
detailed studies into each case.
Å~^ahin also defended his position on granting permission to prosecute
writer Temel Demirer because of his statements on the Armenian
allegations of genocide against Turkey. "This man is saying Turkey
is a murderer state. I am not going to let anyone call my state
a murderer. These [his] expressions are not exercising freedom of
speech: these are humiliating the state, which is exactly what 301
criminalizes," Å~^ahin said.
"There have been 47 permissions. This by itself shows that the Turkish
judiciary is anti-democratic. It shows that people's right to freedom
of expression is not under state protection," commented Husnu Ondul,
a lawyer and former head of the Human Rights Association (Ä°HD).
Ondul said the figures also show that the amendment has not really made
any difference. "These figures are actually not very different from
before the change. This shows that the change hasn't made a difference,
that our rights are not under protection and, most importantly and
gravely, that we are in a very bad situation given Å~^ahin's own
statement that he would not let the state be criticized," he added.
Mithat Sancar, a professor of law, said it did not matter how many
files actually went to court. "What matters is the criteria used
in assessing all of them. Is the permission to try a 301 case being
given according to some objective criteria? Or is it being given in
a more arbitrary fashion?"
"In democracies, citizens have the right to criticize their state. This
is the difference between totalitarian regimes and democracies. It
is in totalitarian regimes that you get in trouble for criticizing
the state," Ondul noted.
Another criticism of Å~^ahin's remarks was that he had not only given
permission, but also tried the case and made the judgment himself
with the statement "I won't let anyone call my state a murderer."
Independent news network Bianet's Erol Onderoglu commented, "Å~^ahin's
statement is openly a violation of the Turkish Penal Code Article 277,
which criminalizes 'influencing those performing a judicial duty,'
and Article 288, which criminalizes 'an attempt at affecting the fair
judicial process'."
He pointed out, "Minister Å~^ahin is not a court, and he is committing
a crime," and called on daring prosecutors to start legal action
against Å~^ahin.
Sancar said Å~^ahin's comment on the Demirer case raised serious
concern. "How will the judiciary not be affected by his words? He has
violated the first principle he should have adhered to: the principle
that one is innocent until proven guilty. I think these words show how
sincere the justice minister is about protecting freedom of speech. We
should really revisit what the justice minister understands about
democracy and freedom."
Amending 301
The amendment to Article 301 was welcomed by the European Commission
in May, whose members said they were expecting further changes to
ensure that such prosecutions come to an end.
The change made to Article 301 of the penal code was approved with 250
votes for and 65 against amid fierce criticism from the nationalist
opposition. The ruling Justice and Development Party (AK Party),
which dominates the 550-seat Parliament with 340 lawmakers, was the
only party that voted in favor of the amendment, while opposition
parties voted against it.
In addition to requiring the justice minister's permission to open
a case, the amendment changed the wording of the article making it
a crime to insult the Turkish nation, rather than "Turkishness." It
also reduced the maximum sentence from three years to two.
Although no one has ever been sent to jail on a 301-related charge, the
publicity of such cases has done a great deal of damage to individuals
who were suspects in these trials. Some, such as Armenian-Turkish
editor Hrant Dink, have paid dearly. Dink, who was tried for insulting
the Turkish identity in 2006, was shot dead by a militant nationalist
in January of last year.
--Boundary_(ID_Gk8qyIw/rswhU/G0yOiQLA)--